Date: April 2017
These are the Service Terms for the Web Design WordPress Managed Services (Create IT, Activate IT and Accelerate IT).
1.1 The Services are designed and built for integration with our hosting services. These Melbourne IT Hosting Services will need to be purchased separately and are subject to their own terms and conditions.
1.2 You may request that the Services be provided in conjunction with a non-Melbourne IT hosting provider before the Services commence. We will, in our sole discretion, determine whether this alternative hosting provider’s hosting platform is appropriate, and either accept or reject your request. Should we reject your request, we will provide you with a full refund for the Services. Where the Services are utilised with any alternative hosting provider, you will be responsible for publishing your Website in Design and we will not be responsible for any issues, errors or loss of functionality from the publishing your Website in Design on an alternative hosting provider’s platform. Any attempt to migrate or transfer your Website in Design to an alternative hosting provider’s platform without our express consent will be a violation of these Service Terms, and will be at your own risk.
1.3 Any software or plugins made available to you by us for use with the Services (Add-ons) must be associated with your Website in Design and are not transferable to any other accounts you have with us, or any other websites. Such Add-ons require an active subscription to the Services to remain active. We offer a number of Add-ons as standard for all Services which are subject to change, and may be removed or added at our discretion and without notice to you.
1.4 If you have purchased SiteShop Inclusive or SiteShop Plus, the “SiteShop powered by Cashie Commerce” plugin will be included in your bundle of services.
2.1 If you have specific custom requirements for features and options not included in any of the Services, we will provide you with a Proposal specifically tailored to these custom requirements that you have provided to us.
2.2 We will provide a brief to you confirming certain objectives and requirements discussed with you (such as suggested colour schemes, site map, your intended business objectives for the website, website design template recommendations etc.) for your approval (Brief). You must contact us within 5 business days if you have any concerns with the Brief or do not wish to approve, or we will otherwise assume you have approved the Brief, and we will proceed to build and provide to you the website design templates (Templates) and, if purchased, website content services (Content Services).
2.3 You must provide complete feedback to us in the event you have any issues with the provided Templates, and we agree to three attempts to address these issues with you, before escalating to the Dispute Resolution process (see clause 7). We require written approval of the Templates prior to proceeding with any customisation, and should written approval not be received within 14 calendar days from delivery of the Templates, we may place the Services on Administrative Hold.
2.4 If you have purchased Content Services, you must provide complete feedback to us in the event you have any issues with the provided content within 7 calendar days, failing which, we will assume you have approved the Content Services. We will provide you with one attempt to address any issues you raise before escalating to the Dispute Resolution process (see clause 7).
2.5 We will provide you with an opportunity to review the customised Templates (Website in Design), and depending on the Service you have purchased, you will be given a certain number of reviews to request changes to the Website in Design, which may include:
2.5.1 text and image placement changes;
2.5.2 graphical changes (replacement of image with alternative supplied image);
2.5.3 page or section changes; or
2.5.4 functionality enhancement changes (Add-ons included with Service ordered).
Additional changes (not previously agreed to in the Proposal (if applicable)) can be requested but will incur additional costs (calculated at the rate of AUD $175 per hour), which we will confirm in a quote (valid for one calendar month) before performing any additional changes. Changes requested that do not relate to the approved Brief or any instructions received from you, which we have agreed to (for instance, changes specified in an accepted Proposal) are excluded, and will incur additional costs to be processed. You must provide complete feedback to us in the event you have any issues with the requested changes made, and we agree to three attempts to address these issues with you, before escalating to the Dispute Resolution process (see clause 7). You must provide a response to us within 14 calendar days if you have any changes to request, otherwise we will assume you have approved the Website in Design.
2.6 Following approval of the Website in Design, we will request a final written confirmation of approval before we proceed to publishing this Website in Design on the Internet as your website. If we do not receive a response within 7 calendar days of our request, we will assume you approve of the Website in Design and we may proceed with publishing. You agree you are solely responsible for the back-up of any data, websites or information (including without limitation email files, databases, hosted files etc.) which may be replaced pursuant to the provision of the Services (including without limitation as a result of the publishing of your Website in Design).
2.7 The publication of the approved Website in Design completes our obligations to you under these Service Terms, other than in respect of (i) any ongoing relationship we have to you as a service provider, and/or (ii) any ongoing managed service (as specified on the Melbourne IT Website) you have purchased from us (for the avoidance of doubt, such managed service will form part of the ‘Services’ where ordered, and is not available if you have published your Website in Design using an alternative hosting provider). All future changes and maintenance to your Website in Design will be your responsibility, however we may agree to assist with requests for additional customisation at an additional cost (which we will advise you of in advance via quote (calculated at the rate of AUD $175 per hour)).
2.8 Completion of the Services in a timely manner depends upon your responsiveness to any requests from us, and where applicable, provision of timely and complete feedback or approvals. We are not responsible for any delays in provisioning the Services which occur as a result of your failure to respond as requested or required.
2.9 You agree to provide us with such information as we or our Supplier reasonably require in order to provide the Services to you, and to keep this provided information up to date and accurate. You agree we may share this provided information, along with any other information or materials (including any provided content or design brief) related to the Services, with our Supplier.
2.10 You must supply us with all graphics, files or text (Content) for customisation of your chosen Templates to be used for website we will design (note, modification or alteration of the Templates themselves is subject to our sole approval). All Content must be submitted to us within 30 calendar days following your approval of the Templates or we may place the Services on Administrative Hold, or in the case of new websites, populate that website with sample content at our discretion. Should Content not be supplied within 30 calendar days following a service being placed in Administrative Hold, we reserve the right to cancel the Services without refund. We cannot proceed with providing the Services until Content has been received.
2.11 You are responsible for ensuring you have all appropriate legal rights to all supplied Content. All Content must be submitted electronically, should be copies and not originals, and should be of a high quality standard that is acceptable to us. We will not return any Content to you, and you are responsible for maintaining back-up copies of all submitted Content. We will not be responsible for any loss of, or damage to, any of your Content. Should any files be too large for electronic delivery, you must make arrangements for these to be delivered to us, however large files may affect our ability to meet any stated completion timelines, and additional costs may apply (which we will advise you of prior to undertaking work). We reserve the right, in our sole discretion, to refuse to use any Content we believe is objectionable or may infringe upon the intellectual property rights of others, or would be in breach of our AUP. We may agree to generate text for you at an agreed additional cost, which you would be required to review and approve (and which will be considered as Content under these Service Terms).
3.1 The Services may be placed on hold (Administrative Hold) by us (as stated in clauses 3.3, 3.10, 4.1 and 4.2) or by you upon written request (prior to your Website in Design being published). We will not perform any work while Services are in Administrative Hold. Where you have requested the Services be placed on Administrative Hold, you are solely responsible for contacting us to request the Services be removed from Administrative Hold. If the Services remain in Administrative Hold for 3 months or longer, we may cancel the Services without prior notice to you. In such circumstance, all fees paid by you will be forfeit.
3.2 If you do not provide a response to us to any communication (within the timeframes stated in that communication) or as required by these Service Terms, we may place the Services on Administrative Hold.
3.3 Any monthly fees charged for the Services (including fees charged for your Melbourne IT Hosting Service) shall continue to be payable where the Services are placed on Administrative Hold.
4.1 The fees and charges payable for the Services include:
4.1.1 where a Proposal has been provided and accepted, a deposit equal to 50% of the total fees stated in the Proposal, payable upon us invoicing you once we have received the signed Proposal;
4.1.2 a fixed build or content services fee (if applicable), payable in advance;
4.1.3 a monthly recurring or annual managed services fee, payable in advance; and
4.1.4 where incurred, additional fees as outlined in these Service Terms (such as agreed quotes for additional work or due to the Services being in Administrative Hold).
Fees payable for any Melbourne IT Hosting Services are separate to the fees and charges payable for the Services.
4.2 You must pay all prices and charges for the Services and other amounts incurred by you or incurred as a result of any use of the Services (whether authorised or not) in accordance with the billing provisions specified in these Service Terms or in the Proposal (if applicable). You agree to keep your billing and account information up to date and to notify us of any changes to such information from time to time.
4.3 Prices and charges published on Melbourne IT’s Website or in the Proposal (if applicable) are inclusive of any government taxes or charges unless otherwise stated.
4.4 If you fail to pay any fees and charges in any invoice by the due date specified, in addition to any other rights under these Service Terms, we may charge you interest on that unpaid amount until such time as payment is received, and/or suspend or terminate the Services.
4.5 You agree that in the event of any action being taken by us to recover any overdue amount due to it under this agreement or a Proposal (if applicable), as evidenced for example by, without limitation, your credit card company notifying us of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed, any costs incurred by us in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by us) are payable by you to us and shall be recoverable by us as a separate debt.
5.1 You are solely responsible for ensuring that you have all appropriate rights and licenses to the Content supplied to us.
5.2 You expressly grant to us and our Supplier a royalty-free, worldwide licence to use, reproduce, modify, edit or otherwise all supplied Content, and to cache the entirety of your Website in Design (including your Content) where hosted by us or our Supplier, pursuant to these Service Terms. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third parties in connection with the grant of this licence to us and our Supplier. You also agree that any such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
5.3 Any Templates or Website in Design delivered by us under the Services are without any representation or warranty as to your ability to obtain trademark, copyright, or similar protections in any jurisdiction throughout the world. We expressly disclaim:
5.3.1 all liability to you or any third party for any infringement of intellectual property or proprietary rights; and
5.3.2 that we will be responsible for, or provide any advice or guidance in respect of, any potential intellectual property rights issues which may arise from your use of the Services (including without limitation the use of Content in the Website in Design).
5.4 We are not responsible for any content (including your Content) contained in your Website in Design, nor are we responsible for your use of the Website in Design. You are solely responsible for ensuring your Website in Design complies will all applicable laws and regulations, and does not infringe any third party’s rights, at all times.
5.5 Upon publication of your Website in Design, we transfer to you all rights, titles and interest in the Website in Design, but expressly reserve and retain all rights and/or licenses to (i) display your Website in Design as-is or with alterations online or in any other manner in our sole discretion, and (ii) all design, copyright or other intellectual property rights in the Templates. Except as expressly stated in this clause, no other rights, titles or interests are granted to you.
5.6 You may not copy, modify or translate any of our Templates or related documentation, or grant any other person or entity the right to do so.
In the event Melbourne IT and you are unable to resolve any issues, the parties will agree to attend a teleconference meeting to discuss the issues (Dispute Resolution). Both parties agree to attempt to resolve the issues in good faith. If the parties are unable to resolve the dispute, either party may elect to cancel the Services and this agreement in accordance with clause 10.
You represent and warrant that:
7.1 you have all appropriate rights and licenses in all Content you supply;
7.2 you have not entered into this agreement, or accepted the Proposal (if applicable) or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either us or our Supplier concerning this agreement, the Proposal or the Services, other than any statement or representation contained in these Service Terms;
7.3 your use of the Services or your Website in Design will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary rights of us, our Supplier or any third party;
7.4 you will conduct such tests and computer virus scanning as may be necessary to ensure that any data provided by you does not contain any computer virus and will not in any way, corrupt the data or systems of any person (including, without limitation, us or our Supplier); and
You agree you will indemnify and defend us and our Supplier and all directors, officers, employees, and agents of us and our Supplier (each an Indemnified Party) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or directly or indirectly relating to:
(a) Your Products and Services (if applicable); and/or
(b) any breach of this agreement by you; and/or
(c) the use of the Services by you; and/or
(d) the use or operation of your published Website in Design by you or any other party; and/or
(e) the implementation of the AUP by us, any action taken by us in accordance with the AUP, or, any breach or violation of the AUP; and/or
(f) any action taken by us or our Supplier in connection with you undertaking or attempting to undertake any Additional Prohibited Activity.
Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.
This clause 10 shall not apply where you terminate this agreement and cease obtaining the Services from us pursuant to our Universal Terms of Service.
9.1 You may cancel the Services (including where purchased, any managed service component of the Service) at any time upon 30 calendar days prior written notice.
9.2 Cancellation of the Services of Create IT, Activate IT, Accelerate IT by you will result in:
9.2.1 a cancellation administrative fee of AUD $25 being payable;
9.2.2 where you have not been provided with the Brief (see clause 3.1), full refund of the fees stated in clause 5.1.1 and pro-rata refund of fees stated in clause 5.1.2;
9.2.3 where you have been provided with a Brief and approval has been received or assumed (see clause 3.1), a pro-rata refund of the fees stated in clause 5.1.2 only;
Subject to your payment of the applicable cancellation fee as specified in clause 10.2.1, we will then process any refunds available to you.
9.5 We may cancel the Services for the reasons specified in clauses 3.8 and 4.1 of these Service Terms. No refunds will be available.
9.6 Cancellation of Services will not result in cancellation of any associated Melbourne IT Hosting Service. If you want your associated Melbourne IT Hosting Service to be cancelled at the same time, you must expressly advise us. Please note that additional cancellation costs may apply to the cancellation of an associated Melbourne IT Hosting Service, and you should review the applicable terms and conditions of that service to determine what costs may be involved. Upon cancellation, we or our Supplier may delete all data, including your Content or files (including, without limitation, email files, if applicable) from their systems (including any storage media) without any liability to you whatsoever.